Kenya Union of Domestic Workers, Hotels, Educational Institutions and Hospital Workers Union (KUDHEIHA) v Board of Management - Kaimosi Teachers Training College (Employment and Labour Relations Cause E024 of 2023) [2024] KEELRC 821 (KLR)
The bottom line
#A union that starts conciliation must finish it before suing in court, or its case will be dismissed as premature.
What this practically means
#Executive summary
#Key legal issues
#Whether the claim is premature
The claim was premature because conciliation had not concluded and no certificate of unresolved dispute issued
The dispute had been reported to the Cabinet Secretary and a Conciliator appointed under section 62 of the LRA. Section 69 deems a dispute unresolved only upon a conciliator's certificate or expiry of the thirty-day period. The parties were still negotiating CBA clauses before the conciliator. Under Rule 5(3) of the ELRC (Procedure) Rules, 2016, the claim should have been accompanied by a Conciliator's Report, Certificate or an affidavit explaining why conciliation had not concluded. None was availed. Article 159(2) requires courts to promote ADR, and a party who invokes conciliation must exhaust it.
Whether the Claimant is entitled to the orders sought
The reliefs sought were not granted; the court recognised the union's right to collective bargaining but referred the unresolved financial clauses back to the conciliator
The court acknowledged the right to fair labour practices and collective bargaining under Article 41 of the Constitution, ILO Conventions 87 and 98, ICESCR Article 8 and sections 4, 5 and 54 of the LRA. However, since conciliation remained pending and financial clauses were unnegotiated, the court directed parties to proceed to conciliation, gave the conciliator 30 days, and required registration of the signed CBA within 15 days. No evidence of member intimidation was produced.
Legal principles established
#- A party who invokes conciliation under the Labour Relations Act must exhaust those mechanisms before coming to court; abandoning conciliation mid-stream renders the suit premature
- Where a dispute has been subject of conciliation, the Claim must be accompanied by a Conciliator's Report, Certificate of Conciliation, or an affidavit attesting to why no certificate issued
- A recognised trade union representing a simple majority of unionisable employees has a right to expect collective bargaining with the employer
Court orders
#- 1.The parties to proceed to Conciliation to resolve the pending aspects on Finance in the proposed CBA
- 2.The matter is referred to the appointed Conciliator on the unresolved trade dispute to finalise the conciliation process on the collective bargaining within 30 days of the judgment
- 3.The Respondent to cause the negotiated CBA to be registered with the Court within 15 days of the parties' signing
- 4.It is so Ordered
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Article 162(2) implied by forum; ELRC (Procedure) Rules, 2016 Rule 5 and Labour Relations Act, sections 54, 57, 62, 65, 69 discussed)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Domestic Workers, Hotels, Educational Institutions and Hospital Workers Union (KUDHEIHA) v Board of Management - Kaimosi Teachers Training College (Employment and Labour Relations Cause E024 of 2023) [2024] KEELRC 821 (KLR)", Case Analysis (2024). Not stated in judgment ( Memorandum of Claim dated 20th November 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/821/eng@2024-04-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.